5.  The applicant is the publisher of a periodical, “wien.direkt”, with a print run of 8,000. It is an “internal” paper of Grüne Alternative Wien which is delivered to sympathisers and functionaries of that party.
6.  On 13 July 2000 Mr. H. Kabas, the chairman of the Vienna regional branch of the Austrian Freedom Party (FPÖ), brought compensation proceedings against the applicant claiming compensation under Section 6 of the Media Act (Mediengesetz) for defamation. He submitted that the applicant published in the issue no. 4 June/July 2000 of the periodical a picture of a modified election poster of the FPÖ posted in the course of the Vienna Municipal elections. Mr. H. Kabas contended that the modified picture showed him, wearing a Nazi-uniform. The poster was annotated with the following text sequence in Gothic letters:
“Our offer: honour & loyalty”
7.  Mr. H. Kabas stressed that the picture implied that he stands for National Socialist ideas or at least sympathises with these ideas as the text sequence referred to the SS-maxim “Loyalty is my honour” (“Meine Ehre heißt Treue”) and that, therefore, the publication of the picture met the offence of defamation. He requested that the applicant be ordered to pay compensation. Furthermore, he requested supplementary measures under the Media Act, such as the publication of a notice that proceedings under that Act had been opened and the publication of the judgment.
8.  On 12 September 2000 the applicant filed observations. It stressed that the picture did not imply that Mr H. Kabas stood for National Socialist ideas but was a caricature expressing that a front man of the FPÖ maintains a questionable approach to the National Socialist era. The caricature referred to a recent speech of Mr E. Windholz, the chairman of the Lower Austria regional branch of the FPÖ, given to party members in the course of a regional branch party congress. In his speech Mr E. Windholz used the expression “Loyality is our honour”. Mr H. Kabas defended Mr. E. Windholz and his statement in public. The applicant wanted to criticise these statements by the caricature at issue.
9.  On 23 October 2000 the Vienna Regional Court (Landesgericht) ordered the applicant to publish a notice that the proceedings under the Media Act were pending. It found that the published picture showed Mr. H. Kabas wearing a uniform similar to a SA-uniform (Sturmabteilung). Instead of the swastika the tie of the uniform showed an “F” as short form of “FPÖ”. The court considered that this picture with the annotated text sequence (cited above) associated Mr. H. Kabas with National Socialism.
10.  On 14 November 2000 the applicant submitted further observations. It pointed out that functionaries of the FPÖ had repeatedly used expressions which were typically used in National Socialist parlance and referred to report of September 2000 by Martti Ahtisaari, Jochen Frowein and Marcelino Oreja, who received a mandate from fourteen member states of the EU to deliver a report covering, inter alia, the evolution of the political nature of the FPÖ in which the experts concluded that the FPÖ is a “right wing party with extremist expressions”. The applicant stressed that it wanted to criticise the repeated use of typical National Socialist expressions in a satirical way through a caricature and to point at the questionable approach to the National Socialist era by Mr H. Kabas and other functionaries of the FPÖ. Moreover, it contended that the picture, which was printed in black-and-white, could not give the impression that Mr H. Kabas was pictured with a Nazi-uniform. The election poster was modified in that a harness was put on Mr H. Kabas and on his tie a white circle with an “F” was added. It also submitted that the court had to consider the political context in which the picture was published.
11.  On 8 January 2001 Mr. H. Kabas submitted his observations. He repeated his prior allegations and contended that the FPÖ did not stand for a xenophobic policy. The wrong and distorted statement of fact of the picture, associating Mr H. Kabas with National Socialism; violated his personality rights which had to be respected.
12.  On 30 January 2001 the Vienna Regional Court, after having held a hearing, awarded Mr H. Kabas a compensation of 10,000 Austrian shillings (726.73 euros (EUR)) and ordered the applicant to publish the judgment in its periodical. It found that the published picture showed Mr H. Kabas in a uniform which was clearly similar to a SA-uniform and that this was obvious to the average reader of the periodical at issue. Instead of the swastika the tie of the uniform showed an “F” as short form of the “FPÖ”. It was common knowledge that the SA was a National Socialist combat unit. Thus, the picture at issue alleged that Mr H. Kabas had a National Socialist attitude. Since the Prohibition Act (Verbotsgesetz) criminalises activities inspired by National Socialist ideas; the picture could violate Mr H. Kabas’ honour and, thus, meet objective elements of the offence of defamation within the meaning of Section 111 of the Criminal Code. Moreover, the used annotation associated Mr H. Kabas with National Socialism. The applicant’s submissions about the political nature of the FPÖ and the political attitude of its functionaries did not constitute sufficient evidence for proving that Mr H. Kabas performed National Socialist activities which would have been necessary pursuant to the Austrian courts constant case-law concerning media offences. Although politicians were required to sustain a higher degree of criticism than other people, there were nevertheless limits to such criticism. The unproven allegation of National Socialist attitudes constituted a massive attack on his reputation even if he was a politician.
13.  On 18 April 2001 the applicant filed an appeal. It submitted that the Regional Court had qualified the picture as statement of fact which alleges that Mr H. Kabas had performed National Socialist activities. However, referring to the case Jerusalem v. Austria (no. 26958/95, 27.2.2001, ECHR 2001-II, § 33), the published picture constituted a justified value judgment concerning Mr H. Kabas’ questionable approach to National Socialism. Moreover, the choice of a caricature and persiflage as satirical means of expression and the publication of the picture in the periodical’s rubric “commentaries” points out that the publication constituted a value judgment justified under Article 10 of the Convention. Further, the applicant stressed that the picture was published in a periodical of an opposition party, as immediate reaction to the statement of a functionary of the FPÖ, using the above mentioned SS-maxim and concerned the criticism of a high official of a ruling party. It had, therefore, to be considered as a political value judgment which by its nature is not accessible to proof of truth.
14.  On 26 September 2001 the Court of Appeal dismissed the applicant’s appeal. It found that the picture at issue implies that Mr M. Kabas performed National Socialist activities or, at least, had a National Socialist attitude. Although involving also the expression of a value judgment, the picture essentially constituted a statement of fact, namely that Mr H. Kabas performed National Socialist activities. Such a statement is susceptible to proof of truth. As to the applicant’s submissions regarding the satirical and caricatural character of the picture, the court found that these arguments could not change its point of view as the emphasis of the publication was put on the personal statement which was insulting.
15.  Following the decision on the admissibility of the application in the present case, the Government informed the Court that the Procurator General’s Office (Generalprokuratur) had lodged a plea of nullity for the preservation of the law.
16.  In a judgment of 8 May 2008 the Supreme Court (Oberster Gerichtshof) ordered the extraordinary reopening of the proceedings, set aside the judgments of 30 January 2001 and 26 September 2001 and ordered a rehearing of the case.
17.  The Supreme Court found that there were serious doubts regarding the correctness of the judgments in question as to the assessment of the contents of the publication at issue.
18.  Furthermore, the courts had failed to pay sufficient attention to the case-law of the European Court of Human Rights, in particular that the meaning of a picture or of a passage of text disseminated in the media had always to be considered in its context.
19.  On 22 July 2008 the Regional Court discontinued the proceedings because Mr Kabas had withdrawn his action. In its decision the Regional Court also found that the plaintiff, Mr. Kabas, had to reimburse the applicant’s costs of proceedings.
20.  On 18 May 2009 the Regional Court fixed the amount the plaintiff had to reimburse and on 17 July 2009 the Court of Appeal dismissed his appeal against this cost order.